Reviewing the PTSD Injury Case for Lawyers: When is PTSD more than it appears?

June 5, 2013by Steven Gursten

What lawyers need to know about clients who suffer from PTSD

I was recently interviewed by Lawyers Weekly on the subject of post traumatic stress disorder. The occasion was a simply awful recent Michigan Court of Appeals case, Overweg v. Thomas, that dismissed a very serious post traumatic stress disorder (PTSD) claim for a woman who watched her husband die.

This case highlights challenges that any lawyer who is litigating a PTSD injury claim around the country must know.

In Overweg, the court ruled that Frances Overweg, who suffered from PTSD after watching her husband die from a car accident, had not established an objectively manifested impairment (which must be established under Michigan’s automobile accident threshold law).

Although the case is specific to Michigan, the lessons apply to lawyers nationwide.

First the facts: Mrs. Overweg was driving in a separate car behind her husband, and watched as a third vehicle crashed into his car. She found him pinned under the car wreckage and debris and she was unable to free him. Then she continued to watch as first responders unsuccessfully attempted to resuscitate him.

In her lawsuit seeking coverage for her resulting post traumatic stress disorder, the defense argued that Mrs. Overweg failed to satisfy the No-Fault threshold to bring a pain and suffering injury claim because her PTSD was not an objectively manifested impairment of body function.

Mrs. Overweg’s lawyer argued that PTSD satisfied the injury threshold required under Michigan’s auto law, because it’s a severe mental disturbance that caused her actual physical harm and her injury was a serious impairment of a body function that affected her ability to lead her normal life.

In an unpublished decision, the Court of Appeals concluded that Mrs. Overweg failed to establish that a particular body function had been affected by post traumatic stress disorder.

Post traumatic stress disorder symptoms

Post-traumatic stress disorder is a life-disrupting anxiety disorder and it can be very severe and disabling. PTSD is triggered by experiencing or witnessing a traumatic or life-threatening event, such as a serious car accident. It causes intense fear, helplessness or horror, according to the Mayo Clinic.

PTSD symptoms could appear immediately or within months or even years of the traumatic event, according to the Mayo Clinic. Here are some common symptoms of PTSD:

Flashbacks, or reliving the traumatic event.

Nightmares about the traumatic event.

Trying to avoid thinking or talking about the traumatic event.

Feeling emotionally numb.

Avoiding activities you once enjoyed.

Hopelessness about the future.

Memory problems.

Trouble concentrating.

Difficulty maintaining close relationships.

Irritability or anger.

Overwhelming guilt or shame.

Self-destructive behavior, such as drinking too much.

Trouble sleeping.

Being easily startled or frightened.

Hearing or seeing things that aren’t there.

PTSD symptoms may be triggered or worsen when reminded in any way of the traumatic event.

Lessons for injury attorneys about PTSD injury claims

I told the newspaper that this case exemplifies what is wrong with severe tort laws and the common misconceptions about PTSD:

“PTSD causes very real chemical and organic changes to the brain, which can be viewed in objective tests. For the majority to say that the impact of PTSD on the brain is not an objectively manifested impairment of a body function is absurd.”

However, the reporter left out some very important points. To start, PTSD has been shown in repeated studies to shrink the hippocampus region of the brain. Thus, a PET scan on a “purely emotional claim” under states that require objective proof of injury can still establish objective proof.

And obviously the brain is an important body function.

If the hippocampal region of brain shrinks, then it is by definition a traumatic brain injury (TBI) and moreover further exacerbates the underlying TBI.

It’s also important for lawyers representing auto accident victims to carefully evaluate whether the PTSD claim is really more than PTSD alone.

Although Mrs. Overweg clearly had PTSD because she was in a separate vehicle, many of these cases are really severe emotional sequalae from a brain injury. They cannot be so cleanly and neatly separated from each other. The PTSD and the TBI injuries are often, if not usually, interconnected, and the effects and impairments caused by one certainly influences and exacerbates the problems caused by the other.

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